PANWAR, J. - (1.) THIS criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, "the Code") has been filed challenging the order dated 30. 9. 2004 passed by the Additional Sessions Judge (Fast Track) No. 2, Bikaner (for short, "the trial Court" hereinafter) in Sessions Case No. 45/2004, by which the trial Court dismissed the application filed by the petitioner seeking to declare that the petitioner was juvenile as defined in section 2 (k) of Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'the Act' hereinafter) on the date of alleged commission of crime and as such he should be tried by the Juvenile Justice Board.
(2.) THE petitioner, along with his father and younger brother is facing trial for the offences punishable under Sections 341, 323, 325, 307 and 302 I. P. C. for the occurrence which took place on 3. 6. 2004. He filed an application under Section 49 of the Act for determination of his age and alleged that his date of birth is 12. 7. 1986 and the alleged occurrence took place on 3. 6. 2004, as such he has not attained the age of 18 years on the date of the alleged incident. On that application, the trial Court conducted an inquiry under Section 49 of the Act and after considering the evidence produced by the parties, dismissed the application. I have heard learned counsel for the parties and perused the impugned order as also the record of the case. It has been contended by the learned counsel for the petitioner that on the date of the incident, the petitioner was a juvenile being age of 17 years, six months and 23 days. Placing reliance on Rajinder Chandra vs. State of Chhattishgarh and Anr. , 2002 SCC (Cri.) 333, it has been contended that it was a border- line case and in view of the law laid down by the Hon'ble Supreme Court, in border-line cases, if two views are possible on the basis of the evidence adduced, the view which is in favour of the juvenile delinquent should be adopted. During inquiry under Section 49 of the Act, petitioner produced the Transfer Certificate Ex. C/1, copy of scholar register Ex. C-2a (1), school admission form Ex. C-3a and the Transfer Certificate Ex. C/4a, wherein his date of birth has been recorded as 12. 7. 1986. On the basis of these documents, it has been contended that on the date of incident, the petitioner was juvenile. These documents have been produced by CW3 Balchand Sunar, the Headmaster of Government Upper Primary School, Luniyabada Bas, Napasar, Bikaner. Cw1 Smt. Durga is the mother of the petitioner who has stated that at the time of admission in the school, petitioner was aged about 6-7 years. She has stated that she got the petitioner admitted in the school and got her date of birth recorded. In cross-examination, she has stated that it was she, and not her husband, who got the petitioner admitted in the school by filling-up the admission form and thereafter said that the admission form was filled-up by a teacher as she is illiterate. She has further stated that she does not know in which year the petitioner was born but he was born in the month of "sawan" and now the petitioner has attained the age of 18 years. She has stated that petitioner was married three years before and is having a daughter aged about 6-7 months.
(3.) CW2 Bhanwar Lal is the brother-in-law (gainer) of petitioner's father Dula Ram. He has stated that at the time of admission in school, petitioner was aged about 7 years. He has stated that the first son to Dula Ram (petitioner's father) was born after four years of his marriage. In cross-examination, he has stated that in which month, the petitioner was born, he does not know, but the petitioner was born in Samvat Year 2043 and presently Samvat Year 2061 is running. Cw-4 Dula Ram is the father of the petitioner and has stated that at the time of admission in the school, petitioner was aged about 7 years. He has further stated that he had filled up the school admission form of the petitioner. In cross-examination, he has stated that he cannot say whether at the time of admission in school, the petitioner was aged about 6 years or 7 years. He has further stated that in the admission form, the teacher had filled up the date of birth of the petitioner on imagination. He has further stated that the name of the petitioner is included in the voter-list and in the last election, petitioner had cast his vote. Ncw1 Gopal produced a certified copy of the voter-list Ex. NC 1 wherein the age of petitioner has been shown as 25 years on 6. 1. 2003. In cross-examination, he has denied the suggestion that in that voter-list Ex. NC 1, Dula Ram is not the name of father of petitioner Brij Lal. ;